Case 1:21-cv-11124-NLH-KMW Document 1-1 Filed 05/12/21 Page 1 of 190 PageID: 8
`
`SUMMONS
`
`Attorney(s) Trevor J. Cooney - Archer & Greiner, P.C.
`
`Office Address One Centennial Square
`Town, State, Zip Code Haddonfield, NJ 08033
`
`Superior Court of
`New Jersey
`
`Telephone Number 856-616-2681
`- - - - - - - - - - - - - - -
`A tt om e y ( s) for Plaintiff Inspira Health Network
`
`INSPIRA HEAL TH NETWORK,
`
`Plaintiff(s)
`
`vs.
`AMERICAN GUARANTEE AND
`
`LfABILITY INSURANCE COMPANY,
`Defendant(s)
`
`Gloucester
`Law - - - - - -
`Docket No: GL0-000348-21
`
`County
`
`Division
`
`CIVIL ACTION
`SUMMONS
`
`From The State of New Jersey To The Defendant(s) Named Above:
`
`The plaintiff, named above, has filed a lawsuit against you in the Superior Court ofNew Jersey. The complaint attached
`to this summons states the basis for this lawsuit. If you dispute this complaint, you or your attorney must file a written
`answer or motion and proofofservice with the deputy clerk of the Superior Court in the county listed above within 35 days
`from the date you received this summons, not counting the date you received it. (A directory of the addresses of each deputy
`clerk of the Superior Court is available in the Civil Division Management Office in the county listed above and online at
`http://www.njcourts.gov/forms/10153 deptyclerklawref.pdf.) If the complaint is one in foreclosure, then you must file your
`written answer or motion and proof of service with the Clerk of the Superior Court, Hughes Justice Complex,
`P.O. Box 971, Trenton, NJ 08625-0971. A filing fee payable to the Treasurer, State of New Jersey and a completed Case
`Information Statement (available from the deputy clerk of the Superior Court) must accompany your answ:er or motion when
`it is filed. You must also send a copy of your answer or motion to plaintiffs attorney whose name and address appear above,
`or to plaintiff, if no attorney is named above. A telephone call will not protect your rights; you must file and serve.a written
`answer or motion (with fee of $175.00 and completed Case Information Statement) if you want the court to hear your
`defense.
`
`If you do not file and serve a written answer or motion within 35 days, the court may enter a judgment against you for
`the relief plaintiff demands, plus interest and costs of suit. If judgment is entered against you, the Sheriff may seize your
`money, wages or property to pay all or part of the judgment.
`
`If you cannot afford an attorney, you may call the Legal Services office in the county where you live or the Legal
`Services of New Jersey Statewide Hotline at 1-888-LSNJ-LAW (1-888-576-5529). If you do not have an attorney and are
`not eligible for free legal assistance, you may obtain a referral to an attorney by calling one of the Lawyer Referral Services.
`A directory with contact information for local Legal Services Offices and Lawyer Referral Services is available in the Civil
`Division Management Office in the county listed above and online at
`b.!1Q://www.njcourts.gov/forms/I 0153 deptyclerklawref.pdf.
`
`DA TED:
`
`-'-04-'-/-'-01'-/2--'0_2_1 __ _
`
`Name of Defendant to Be Served: AMERICAN GUARANTEE AND LIABILITY INSURANCE CO.
`
`Address of Defendant to Be Served: 1299 Zurich Way, Schaumburg, IL 60196
`
`Revised 11/17/2014, CN 10792-English (Appendix XII-A)
`
`

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`ARCHER & GREINER
`A Professional Corporation
`One Centennial Square
`P.O. Box 3000
`Haddonfield, New Jersey 08033-0968
`(856) 795-2121
`Attorneys for Plaintiff
`BY: ELLIS I. MEDOWAY, ESQUIRE (#024611982)
`TREVOR J. COONEY, ESQUIRE (#035142000)
`
`INSPIRA HEALTH NETWORK,
`
`SUPERIOR COURT OF NEW JERSEY
`LAW DIVISION
`GLOUCESTER COUNTY
`
`Plaintiff,
`
`DOCKET NO.:
`
`v.
`
`AMERICAN GUARANTEE AND
`LIABILITY INSURANCE COMPANY,
`
`Defendant.
`
`COMPLAINT FOR DECLARATORY JUDGMENT
`
`Plaintiff Inspira Health Network ("lnspira" or "Plaintiff'), by way of Complaint against
`
`Defendant American Guarantee and Liability Insurance Company ("AGLIC" or "Defendant"),
`
`avers as follows:
`
`THE PARTIES
`
`1.
`
`Inspira is a nonprofit health care organization organized under the laws of the
`
`State of New Jersey with its principal place of business located at 165 Bridgeton Pike, Mullica
`
`Hill, NJ 08062.
`
`2.
`
`Upon information and belief, AGLIC is a New York stock company with its
`
`principal place of business located at 1299 Zurich Way, Schaumburg, IL 60196
`
`

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`JURISDICTION AND VENUE
`
`3.
`
`This Comt has jurisdiction over this action because, at all times relevant to the
`
`allegations in this Complaint, AGLIC was duly authorized to conduct business within the State
`
`of New Jersey, including engaging in the business of selling insurance, investigating claims,
`
`and/or issuing policies that cover policyholders, property, and/or activities located in New
`
`Jersey.
`
`4.
`
`Venue is proper in this County because Inspira resides in this County and AGLIC
`
`conducts business in this County.
`
`A.
`
`Inspira's Business Operations
`
`FACTUAL BACKGROUND
`
`5.
`
`Inspira is one of the region's leading network of health care providers, delivering
`
`the full continuum of primary, acute and advanced care services. The system comprises three
`
`hospitals, two comprehensive cancer centers, several multi-specialty health centers and a total of
`
`more than 150 access points. These include urgent care; outpatient imaging and rehabilitation;
`
`sleep medicine labs; cardiac testing facilities; digestive health and wound care centers; home
`
`care and hospice; and more than 35 p_rimary and specialty physician practices in Gloucester,
`
`Cumberland, Salem, Camden and Atlantic counties.
`
`6.
`
`The medical services provided by Inspira include elective surgical procedures and
`
`elective invasive procedures.
`
`7.
`
`Inspira has approximately 7,500 employees working in its health care facilities.
`
`B.
`
`The AGLIC Policy
`
`8.
`
`AGLIC issued to Inspira "The Zurich EDGE Healthcare Policy," bearing policy
`
`number ZMD 0165887-03, effective January 1, 2020 to January 1, 2021 (the "Policy"). The
`
`Policy is attached hereto as EXHIBIT A.
`
`2
`
`

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`9.
`
`The Policy's language was drafted solely by the AGLIC. There were no
`
`negotiations over the Policy language.
`
`10.
`
`11.
`
`The Policy Limit is $500,000,000 for the total of all coverages combined.
`
`The Policy sub-limit for the special coverage under the INTERRUPTION BY
`
`COMMUNICABLE DISEASE provision is $1,000,000.00.
`
`12.
`
`The annual premium Inspira paid for the coverage provided under the Policy was
`
`$546,402.00.
`
`13.
`
`Section 1.01 of the Policy sets forth the following Insuring Agi·eement:
`
`This Policy Insures against direct physical loss of or damage
`caused by a Covered Cause of Loss to Covered Property, at an
`Insured Location described in Section II-2.01, all subject to the
`terms, conditions and exclusions stated in this Policy.
`
`14.
`
`"Covered Cause of Loss" is defined in the Policy as: "All risks of direct physical
`
`loss of or damage from any cause unless excluded."
`
`C. .
`
`"Direct Physical Loss of or Damage"
`
`15.
`
`16.
`
`The phrase "direct physical loss of or damage" is not defined in the Policy.
`
`The courts of New Jersey have interpreted the phrase "physical loss of or
`
`damage" in the standard form coverage grant that appears in the Policy.
`
`17.
`
`The Superior Court of New Jersey, Appellate Division, observed that, since the
`
`policy term '"physical' can mean more than material alteration or damage, it was incumbent on
`
`the insurer to clearly and specifically rule out coverage in the circumstances where it was not to
`
`be provided." Customized Distribution Services v. Zurich Ins. Co., 373 N.J. Super. 480, 487-88
`
`(App. Div. 2004), certif. denied, 183 N.J. 214 (2005).
`
`18.
`
`The Appellate Division has specifically found the undefined term "physical
`
`damage" as it appears in a commercial property policy is ambiguous: "The fact that the tem1
`
`3
`
`

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`'physical damage' is capable of at least two different reasonable interpretations convinces us that
`
`it is ambiguous. And well-established precedent teaches that such an ambiguous provision must
`
`be construed favorably to the insured." Wakefern Food Corp. v. Liberty Mut. Fire Ins. Co., 406
`
`N.J. Super. 524, 541 (App. Div. 2009).
`
`19.
`
`The Appellate Division in Wakefern cited with approval decisions from other
`
`jurisdictions that have held that "'physical damage' is not restricted to the physical destruction or
`
`harm" but that the phrase also "includes loss of access, loss of use, and loss of functionality."' Id.
`
`at 543.
`
`20.
`
`The United States District Court for the District of New Jersey concluded that a
`
`release of ammonia that caused the evacuation of a building for several days because it was
`
`unsafe inflicted direct physical loss of or damage to the facility, "as that phrase would be
`
`construed under New Jersey law by the New Jersey Supreme Court, because the ammonia
`
`physically rendered the facility unusable for a period of time." Gregory Packaging v. Travelers
`
`Property Casualty Co. of America, Civ. No. 2:12-CV-04418 (WHW) (CLW) (D.N.J. November
`
`24, 2014).
`
`21.
`
`The Gregory Packaging Court noted that the Wakefern opinion "indicates that
`
`prope1iy's temporary and non-structured loss of function is recognized as direct physical loss or
`
`damage under New Jersey law."
`
`22.
`
`Thus, the phrase "direct physical loss of or damage" includes, under New Jersey
`
`law, "loss of access, loss of use, and loss of functionality."
`
`23.
`
`Accordingly, the Policy provides coverage for claims that involve the physical
`
`loss of, the loss of access to, the loss of use of, or the loss of functionality of its facilities, as long
`
`4
`
`

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`as an exclusion in the Policy does not clearly and unambiguously apply to the circumstances of
`
`the loss.
`
`D.
`
`The Policy's Special Coverage for INTERRUPTION BY COMMUNICABLE
`DISEASE
`
`24.
`
`However, in the present coverage dispute, Inspira is seeking coverage under a
`
`special coverage part of the Policy that does not even require "direct physical loss of or damage"
`
`to its property.
`
`25.
`
`Section V of the Policy provides for "Special Coverages & Described Causes of
`
`Loss." One of the Special Coverages Inspira paid its substantial premium for is
`
`"INTERRUPTION BY COMMUNICABLE DISEASE".
`
`26.
`
`The Policy's INTERRUPTION BY COMMUNICABLE DISEASE special
`
`coverage part (Section 5.02.35) provides in full:
`
`The Company will pay for the actual Gross Earnings loss sustained
`by the Insured, as provided by this Policy, resulting from the
`necessary Suspension of the Insured's business activities at an
`. Insured Location if the Suspension is caused by order of an
`authorized governmental agency enforcing any law or ordinance
`regulating communicable diseases and that such portions of the
`location are declared uninhabitable due to the threat of the spread
`of communicable disease, prohibiting access to those portions of
`the Location.
`
`This Policy also covers the reasonable and necessary cost incurred
`for the cleanup, removal and disposal of the actual not suspected
`presence of substances(s) causing the spread of such
`communicable disease and to restore the locations in a manner so
`as to satisfy such authorized governmental agency.
`
`This Coverage will only apply when the period of time that access
`is prohibited exceeds the time shown as Qualifying Period in the
`Qualifying Period clause of the Declarations section. If the
`Qualifying Period is exceeded, then this Policy will pay for the
`amount of loss in excess of the Policy Deductible, but not to
`exceed the number of consecutive days following such order as
`stated in the Declarations up to the limit applying to this Coverage.
`
`5
`
`

`

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`This Coverage will not apply to loss or damage that is payable
`under any other provision in this Policy.
`
`27.
`
`"Suspension" is defined in relevant part in Section VII (7.58.01) of the Policy as:
`
`"The slowdown or cessation of the Insured's business activities."
`
`28.
`
`"Qualifying Period" is defined in Section VII (7.48) of the Policy as: "The
`
`continuous period of time expressed in hours or days which must be exceeded before coverage
`
`under this Policy begins."
`
`29.
`
`Section II (2.04) of the Policy identifies the Qualifying Period for the
`
`INTERRUPTION BY COMMUNICABLE DISEASE special coverage part as "24 hours."
`
`30.
`
`Unlike the Insuring Agreement in Section I (1.01) of the Policy, the
`
`INTERRUPTION BY COMMUNICABLE DISEASE special coverage part does not reference
`
`or require "direct physical loss of or damage" to property.
`
`31.
`
`Of the 38 special coverages set forth in Section V of the Policy, 34 provisions do
`
`contain the language "direct physical loss of or damage." The INTERRUPTION BY
`
`COMMUNICABLE DISEASE special coverage part is not one of them.
`
`32. While the Policy contains a Contamination exclusion in Section III (3.03.01.01),
`
`that exclusion does not apply to the INTERRUPTION BY COMMUNICABLE DISEASE
`
`special coverage part, as AGLIC recognized in its May 5, 2020 reservation ofrights letter and in
`
`its March 8, 2021 e-mail denying coverage.
`
`33. Moreover, the Contamination exclusion does not apply to the INTERRUPTION
`
`BY COMMUNICABLE DISEASE special coverage part of the Policy because that would render
`
`that coverage paii both illusory and inconsistent with Inspira' s reasonable expectations. 1
`
`1 Moreover, the original Contamination exclusion in the Policy was modified and replaced by Endorsement No.
`EDGE-219-C (01/18), which Endorsement also modified and replaced the tenn's definition.
`
`6
`
`

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`E.
`
`The COVID.:.19 Pandemic
`
`34.
`
`Coronavirus disease 2019 ("COVID-19") is a highly contagious, and at times
`
`fatal, respiratory disease caused by the SARS-CoV-2 virus. COVID-19 is responsible for the
`
`2019 novel coronavirus outbreak.
`
`35.
`
`Symptoms of the COVID-19 illness include fever, cough, and shortness of breath,
`
`which may appear in as few as two or as long as 14 days after exposure, and can spread from
`
`person to person via respiratory droplets produced when an infected person coughs or sneezes.
`
`36.
`
`On January 30, 2020, the International Health Regulations Emergency Committee
`
`of the World Health Organization ("WHO") declared the outbreak a "public health emergency of
`
`international concern," which means "an extraordinary event which is determined to constitute a
`
`public health risk to other States through the international spread of disease and to potentially
`
`require a coordinated international response," and thereafter raised its global risk assessment of
`
`COVID-19 from "high" to "very high".
`
`37.
`
`On January 31, 2020, the United States Department of Health and Human
`
`Services ("DHHS") declared a public health emergency for the United States to aid the nation's
`
`healthcare community in responding to COVID-19.
`
`38.
`
`As of March 9, 2020, the Center for Disease Control and Prevention ("CDC")
`
`identified more than 114,000 confirmed cases of COVID-19 worldwide, with over 4,000 of those
`
`cases having resulted in death.
`
`39.
`
`As of March 9, 2020, there were more than 500 confirmed cases ofCOVID-19 in
`
`the United States, with 22 of those cases having resulted in death.
`
`40.
`
`As of March 9, 2020, there were 11 presumed positive cases of COVID-19 in
`
`New Jersey, with 24 additional "persons under investigation" spread across the counties of
`
`7
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`

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`Bergen, Camden, Cumberland, Essex, Hunterdon, Middlesex, Monmouth, Passaic, Union, and
`
`Sussex.
`
`41.
`
`According to the WHO, droplets landing on objects and surfaces, such as tables,
`
`doorknobs and handrails, can result in the transmission of COVID-19 when people touch those
`
`objects or surfaces and then touch their eyes, nose or mouth.
`
`42.
`
`As of March 2020, researchers concluded that COVID-19 could remain on plastic
`
`and stainless steel surfaces up to 72 hours.
`
`43.
`
`The CDC issued guidelines for the cleaning, disinfecting and sanitizing of
`I
`
`surfaces and objects such as tables, doorknobs, light switches, countertops, handles, desks,
`
`phones, keyboards, toilets, faucets and sinks.
`
`44.
`
`As of March 9, 2020, the CDC expected that additional cases ofCOVID-19
`
`would be identified in the coming days, including more cases in the United States, and that
`
`person-to-person spread was likely to continue to occur.
`
`F.
`
`The Executive Orders
`
`45.
`
`On March 9, 2020, New Jersey Governor Philip D. Murphy issued Executive
`
`Order No. 103, which provided in part:
`
`I authorize and empower the State Director of Emergency
`Management, who is the Superintendent of State Police, in
`conjunction with the Commissioner of DOH, to take any such
`emergency measures as the State Director may determine
`necessary, including the implementation of the State Emergency
`Operations Plan and directing the activation of county and
`municipal emergency operations plans, in order to fully and
`adequately protect the health, safety and welfare of the citizens of
`the State of New Jersey from any actual or potential threat or
`danger that may exist from the possible exposure to COVID-19.
`
`46.
`
`On March 11, 2020, the WHO declared COVID-19 to be a global pandemic.
`
`8
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`

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`47.
`
`On March 13, 2020, the President of the United States declared a national
`
`emergency pursuant to his constitutional and statutory powers.
`
`4~.
`
`Governor Murphy subsequently issued a series of Executive Orders pursuant to
`
`his authority under the New Jersey Civilian Defense and Disaster Control Act and the
`
`Emergency Health Powers Act to protect the public health, safety, and welfare against the
`
`emergency created by COVID-19.
`
`49.
`
`On March 16, 2020, Governor Murphy issued Executive Order No. 104, which
`
`was the first in a series of Executive Orders issued to combat and mitigate the rate of community
`
`spread of COVID-19.
`
`50.
`
`On March 21, 2020, Governor Murphy issued Executive Order No. 107, which,
`
`among other things, provided: "The brick-and-mortar premises of all non-essential retail
`
`businesses must close to the public as long as this Order remains in effect."
`
`51.
`
`On March 23, 2020, Governor Murphy issued Executive Order No. 109, which,
`
`among other things, suspended all "elective" surgeries and "elective" invasive procedures
`
`performed on adults:
`
`Beginning at 5:00 p.m. on Friday, March 27, 2020, all "elective"
`surgeries performed on adults, whether medical or dental, and all
`"elective" invasive procedures performed on adults, whether
`medical or dental, are suspended in the State. An "elective"
`surgery or invasive procedure, for purposes of this order, is defined
`as any surgery or invasive procedure that can be delayed without
`undue risk to the current or future health of the patient as
`determined by the patient's treating physician or dentist. An
`"elective" surgery or invasive procedure does not include the
`administration of vaccines.
`
`52.
`
`Governor Murphy issued Executive Order No. 109, in pait, because "limiting
`
`exposure of healthcare providers, patients, and staff to COVID-19 ... [is] essential to combatting
`
`the spread of the vims."
`
`9
`
`

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`53.
`
`Governor Murphy's Executive Orders recognized COVID-19 can cause physical
`
`damage to inanimate objects and surfaces within buildings, which allows for the transmission of
`
`COVID-19.
`
`54.
`
`To address the threat of the spread of communicable disease, Inspira altered its
`
`· property to insure the safety of its employees and patients by, for example, erecting barriers,
`
`altering air circulation, installing upgraded filtration systems, reconfiguring indoor spaces,
`
`disinfecting surfaces and materials, as well as providing PPE to its employees and patients.
`
`55.
`
`Patients that contracted COVID-19 were treated at Inspira's healthcare facilities.
`
`56.
`
`In compliance with Executive Order No. 109, Inspira ceased performing
`
`"elective" surgeries and "elective" invasive procedures on adults as of 5:00 p.m. on March 27,
`
`2020.
`
`57.
`
`On May 15, 2020, Governor Murphy issued Executive Order No. 145, which
`
`provided in relevant part: "Beginning at 5:00 a.m. on Tuesday, May 26, 2020, the suspension on
`
`elective surgeries and invasive procedures instituted in Executive Order No. 109 (2020) is
`
`rescinded."
`
`58.
`
`During the period elective surgeries and elective invasive procedures were
`
`suspended (March 27 through May 26, 2020), more than 90 Inspira employees and numerous
`
`patients treated at Inspira's facilities became infected with COVID-19.
`
`59.
`
`Inspira resumed perfo1ming "elective" surgeries and "elective" invasive
`
`procedures on or about May 26, 2020, albeit subject to the limitations and precautions issued by
`
`the Department of Health.
`
`10
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`

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`G.
`
`Inspira Suffers a Covered Loss
`
`60.
`
`Inspira derives a substantial proportion of its revenue earnings from the provision
`
`of "elective" surgery and "elective" invasive procedures.
`
`61.
`
`Inspira was, however, prevented from providing "elective" medical care from
`
`March 27, 2020, through May 26, 2020 based on the Executive Orders.
`
`62.
`
`Once the Executive Order suspending all elective medical surgeries and elective
`
`invasive procedures was rescinded by Governor Murphy, Inspira worked diligently to safely
`
`resume elective medical care in compliance with guidance from state and public health agencies.
`
`63.
`
`Between March 27, 2020 and May 26, 2020, Inspira sustained a significant loss of
`
`Gross Earnings - more than $20,000,000. 00 - resulting from the necess~ry suspension of its
`
`"elective" surgelies and "elective" invasive procedures performed at its Insured Locations, as
`
`required by Executive Order No. 109.
`
`64.
`
`Governor Murphy issued Executive Order No. 109 pursuant to the Constitution
`
`and statutes of the State of New Jersey, including provisions of the Emergency Health Powers
`
`Act and the Civilian Defense Act and Disaster Control Act.
`
`65.
`
`Executive Order No. 109 prohibited access to those portions oflnspira's Insured
`
`Locations for "elective" surgeries and "elective" invasive procedures and declared those portions
`
`of Inspira's Insured Locations uninhabitable for those medical services due to the threat of the
`
`spread of COVID-19, a communicable disease.
`
`66.
`
`Inspira thus sustained a substantial Gross Earnings loss from the suspension of all
`
`elective surgeries and elective invasive procedures, which was a risk expressly insured against
`
`under the Policy's INTERRUPTION BY COMMUNICABLE DISEASE special coverage part.
`
`11
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`

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`H.
`
`AGLIC Denies luspira's Claim
`
`67.
`
`On April I 4, 2020, Inspira gave timely notice to AGLIC of its loss of Gross
`
`Earnings and demanded coverage under the Policy (the "Claim").
`
`68.
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`By letter dated May 5, 2020, AGLIC advised Inspira that it needed time to
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`investigate the Claim and that its investigation was being conducted under a reservation of rights.
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`69.
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`Inspira's communications and submissions to AGLIC indicated that the Plaintiff
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`was seeking coverage only under the Policy's INTERRUPTION BY COMMUNICABLE
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`DISEASE special coverage part, which has a $1,000,000.00 sub-limit.
`
`70.
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`On March 8, 2021, AGLIC sent an e-mail to Inspira indicating that the Plaintiffs
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`Claim under the INTERRUPTION BY COMMUNICABLE DISEASE special coverage part
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`would be denied.
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`71. More specifically, AGLIC asserted among other things that "the presence of the
`
`COVID-19 virus ... does not constitute 'direct physical loss or damage' to property."
`
`72.
`
`In making that assertion, AGLIC ignored the fact that this special coverage part
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`does not contain the language, "direct physical loss of or damage" and, further, that this is not a
`
`requirement under the Policy's INTERRUPTION BY COMMUNICABLE DISEASE coverage
`
`prov1s10n.
`
`73.
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`Additionally, even if the requirement of"physical loss of or damage" to property,
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`was applicable, it has been satisfied in one or more ways, including by virtue of the "physical
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`loss of or damage" to Inspira's qualifying property caused by (i) the actual or potential presence
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`of virus in the air (whether in droplet nuclei, aerosols, droplets, or otherwise) and on surfaces
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`such as door handles, bed railings and medical equipment at such prope1iies; (ii) the necessity of
`
`physically modifying interior spaces in Inspira's buildings; (iii) restricting the use of such
`
`12
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`physical spaces, as was the case with the prohibition on elective medical care; (iv) the need to
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`mitigate the threat or actual physical presence of virus on door handles, bedsheets, hospital
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`gowns, bed railings, medical equipment, and assorted surfaces, as well as in heating and air
`
`conditioning systems and any other of the multitude of places the virus has been or could be
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`found; and (v) the loss of use oflnspira's healthcare facilities during the period of time the
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`Executive Orders suspended all access for elective surgery and elective invasive procedures.
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`74.
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`The INTERRUPTION BY COMMUNICABLE DISEASE special coverage part
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`requires only the "threat of the spread of communicable disease" to trigger coverage.
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`75.
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`Governor Murphy's Executive Orders, including Nos. 103 and 109, recognized
`
`the "threat" that exists from the "spread of the communicable disease" known as COVID-19.
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`76.
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`The INTERRUPTION BY COMMUNICABLE DISEASE special coverage part
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`expressly provides coverage for the loss at issue up to the $1 million sub-limit of liability set
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`forth in the Policy.
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`77.
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`Inspira has performed and satisfied all of its contractual obligations under the
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`Policy, including paying the Policy's substantial premium.
`
`78.
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`AGLIC, however, has unjustifiably refused to provide coverage for Inspira's loss
`
`of Gross Earnings caused by the suspension of all elective surgery and elective invasive
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`procedures pursuant to Governor Murphy's Executive Orders. AGLIC's reasons for denying
`
`coverage are neither consistent with the Policy language nor in compliance with New Jersey law.
`
`79.
`
`Because AGLIC has so far declined to extend Inspira additional time, Inspira has
`
`been forced to bring the instant action to preserve its coverage rights under the Policy.
`
`13
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`FIRST COUNT
`
`(Declaratory Judgment)
`
`80.
`
`Inspira repeats and incorporates all the allegations contained in the foregoing
`
`paragraphs as if fully set forth herein.
`
`81.
`
`This is a claim for declaratory judgment pursuant to the New Jersey Declaratory
`
`Judgment Act, NJ.S.A. 2A:16-50 to -62. As a result of the facts, conditions and circumstances
`
`set forth above in this Complaint, there exists an actual and justiciable controversy between
`
`Inspira and AGLIC concerning their respective rights and obligations under the Policy.
`
`82.
`
`The issuance of declaratory relief will terminate the controversy between Inspira
`
`and AGLIC that gives rise to this action.
`
`83.
`
`As such, this Court has the authority to issue a declaratory judgment concerning
`
`the respective rights and obligations oflnspira and AGLIC under the Policy.
`
`84.
`
`Inspira seeks a declaratory judgment declaring that the Policy covers the losses it
`
`has suffered under the Policy's INTERRUPTION BY COMMUNICABLE DISEASE special
`
`coverage part in the amount of $1,000,000.00.
`
`85.
`
`Inspira seeks a declaratory judgment declaring that AGLIC is responsible for fully
`
`and timely paying Inspira's Claim for said amount.
`
`WHEREFORE, Inspira respectfully requests that the Court enter Judgment in its favor
`
`against AGLIC as follows:
`
`A.
`
`A declaratory judgment that the loss Inspira has suffered is covered by the Policy
`and that Defendant is responsible for honoring its obligations under the Policy,
`which includes making full and immediate payment to Inspira in the amount of
`the $1,000,000.00 sub-limit in the Policy's INTERRUPTION BY
`COMMUNICABLE DISEASE special coverage part;
`
`B.
`
`Compensatory and consequential damages;
`
`14
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`C.
`
`D.
`
`F.
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`Pre-judgment and post-judgment interest at the maximum legal rate;
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`An award of costs and attorneys' fees; and
`
`For such other equitable and further relief as this Court deems just and proper.
`
`Plaintiff hereby demands a trial by jury as to all issues so triable.
`
`JURY DEMAND
`
`NOTICE OF DESIGNATION OF TRIAL COUNSEL
`PURSUANT TOR. 4:5-l(c) AND R. 4:25-4
`Pursuant to R. 4:5-l(c) and R. 4:25-4, Ellis I. Medoway and Trevor J. Cooney are hereby
`
`designated trial counsel for Plaintiff.
`
`ARCHER & GREINER
`A Professional Corporation
`Attorneys for Plaintiff,
`Inspira Health Network
`
`Dated: March 30, 2021
`
`By:
`
`ELLIS I. MEDOW A Y, ESQUI
`TREVOR J. COONEY, ESQ I
`
`15
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`

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`CERTIFICATION PURSUANT TOR. 4:5-l{b)(2)
`I hereby certify as follows:
`
`1.
`
`To the best of my knowledge, the matter in controversy is not the subject of any
`
`other action pending in any court or of a pending arbitration proceeding, and no other action or
`
`arbitration proceeding is contemplated at this time.
`
`2.
`
`At this time I know of no other parties who should be joined in this action
`
`pursuant to R. 4:28 or who is subject to joinder pursuant to R. 4:29-l(b).
`
`I hereby certify that the foregoing statements made by me are true. I am aware that if any
`
`of the foregoing statements made by me are willfully false, I am subject to punishment.
`
`Dated: March 30, 2021.
`
`220676583v2
`
`ELLIS I. MEDOW A Y
`
`16
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`

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`EXHIBIT "A"
`
`

`

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`ZURICH
`
`®
`
`The Zurich EDGE
`Healthcare Policy
`
`EDGE 404 - B (08/16)
`
`

`

`Case 1:21-cv-11124-NLH-KMW Document 1-1 Filed 05/12/21 Page 20 of 190 PageID: 27
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`Disclosure Statement
`
`ZURICH
`
`®
`
`It is our pleasure to present the enclosed policy to you
`for presentation to your customer.
`
`INSTRUCTION TO AGENT OR BROKER:
`
`WE REQUIRE THAT YOU TRANSMIT THE ATTACHED/ENCLOSED DISCLOSURE STATEMENT TO THE CUSTOMER
`WITH THE POLICY.
`
`Once again, thank you for your interest, and we